Ankle monitor GPS data ruling may be appealed

A fight between the local prosecutor and the state district court in Albuquerque over public access to the location data of people ordered to wear ankle monitors while awaiting their day in court may become a constitutional battle over the right to privacy.

Thirteenth Judicial District Court Judge James Noel ruled on Monday that the Second Judicial District Court violated the state’s public records law last year when it denied requests from Second Judicial District Attorney Raúl Torrez for GPS data of people on pretrial release wearing ankle monitors.

“While the Second Judicial District Court respects the analysis and decision in the Order issued on August 1, 2022, the Second Judicial District Court is evaluating its right to appeal,” Sidney Hill, a spokesperson for the court, said Tuesday.

Hill could not confirm whether the court will appeal the ruling to the New Mexico Court of Appeals. As of Tuesday, no appeal in the case had been filed.

“The Second Judicial District Court is committed to fully responding to all records requests that come in from the public and to diligently comply with the Inspection of Public Records Act,” Hill said. “The Court understands the importance of each public records request and takes each request seriously. The Court has at all times acted in good faith and will continue to do so.”

The Court argued that people awaiting trial who are ordered to wear an ankle monitor have a reasonable expectation of privacy in their GPS data. They pointed to three prior cases dealing with the Fourth Amendment right to privacy.

But Noel wrote that the protections in those cases “have not been extended to individuals on probation and parole” nor to “individuals on pretrial release.”

Few people commit crimes while being watched before trial, early data show

Noel wrote that since people on pretrial release are “unambiguously aware” that they will be tracked 24/7 by the ankle monitor, they do not have “a reasonable expectation of privacy as to their location.”

It is not clear if the defendants are ever made aware that their location data could be made available to the public rather than just police, prosecutors or other authorities in the criminal legal system.

At a news conference on Tuesday morning, Torrez said if the Court appeals the ruling he thinks the privacy argument will come back up again, and that hopes the state Attorney General “would be committed to seeing this appeal through to its conclusion.”

Location data is public, judge rules

The Second Judicial District Court has its own GPS monitoring system called the Judicial Supervision and Diversion Program. It is separate from the GPS systems operated by the Probation and Parole Division and the Administrative Office of the Courts.

Torrez asked the Court for the GPS data for two defendants on April 30, 2021 and Nov. 12, 2021.

The court’s records custodian denied inspection of GPS records for both defendants saying they are confidential based on “constitutional rights of criminal defendants to a fair trial and presumption of innocence,” along with their right to privacy.

The Court argued that the GPS data “does not pertain to public actors” but rather relates to the location of “private citizens,” and therefore are not “public records” as defined by the Inspection of Public Records Act. Noel disagreed.

“That a record may contain information relating to the location of private citizens is not an exemption or exclusion from this definition,” Noel wrote.